Application of Islamic legal maxims in muslim family law arbitration : case studies in England

Abstract

Muslims living in England live in a real predicament. On the one hand, they have to face the reality that the laws governing the family institution are secular in nature. This poses a threat to their identity and freedom of religion. On the other hand, they are commanded by Islam to settle their disputes according to its laws and principles. However, this is unrealistic, simply since the only recognized legal system in England is the English Law. To circumvent this situation, certain Muslim scholars and communities have established quasi-judicial courts, acting in the capacity of mediators, counsellors, arbitrators, and even judges, to settle marital disputes. These courts, known as Shari‘ah councils, provide a modern approach to alternative dispute resolution, whereby Muslim families and individuals can have their disputes resolved amicably. It was also set up as a response by Muslims to adapt to life under the English secular laws in which they live in, that do not afford them the right of having a Shari‘ah-based institution. Although the concept of alternative dispute resolution through arbitration dates back to pre-Islamic Arabia, with its advent Islam established a more codified and principled approach to the matter. Therefore, one of the objectives of this thesis was to give readers a deeper insight into the concept and procedures of Islamic judicial system, including arbitration, and its application to the Muslim-minority context in England. Additionally, the researcher has penned down several Islamic legal maxims relating to Muslim family law, which can be used as a template for current Shari‘ah council operations and even future set-ups. By employing both theoretical and qualitative methods, the researcher aims at developing a practical and empirical approach to this genre of Islamic studies. Furthermore, the researcher conducted interviews, collected data on arbitrational cases, and analysed them to give a better understanding of the inner workings, structural logic, and operation of several Shari‘ah councils. As a result, it was found that all members of the Shari‘ah councils interviewed were graduates from Islamic law faculties. It was also observed that none of the Shari‘ah councils interviewed adhered to any one particular school of law when adjudicating cases. Interestingly, amid the backlash, criticism, and negative portrayal of Shari‘ah councils by the media and politicians, there is an increasing demand for their work and services. The researcher found that on average 94% of arbitrational awards were accepted and enforced by litigants willingly. Last but not least, the researcher critically analysed arbitrational cases by the said Shari‘ah councils to determine whether or not Islamic arbitration procedures were followed as well as to determine whether the deliberation was given to meet the highest standards of Islamic adjudication. Given the fact that there is currently no appellate review by any of the said Shari‘ah councils, it is hoped that this thesis will also serve as a critical examination and review of their past judgments/decisions.